Muse v. State
| Decision Date | 12 March 1940 |
| Docket Number | 7 Div. 469. |
| Parties | MUSE v. STATE. |
| Court | Alabama Court of Appeals |
Rehearing Denied March 26, 1940.
Appeal from Circuit Court, Etowah County; J. H. Disque, Jr., Judge.
Holston Muse was convicted of robbery, and he appeals.
Affirmed.
Certiorari denied by Supreme Court in Muse v. State (7 Div 627) 196 So. 151.
Motley & Motley, of Gadsden, for appellant.
Thomas S. Lawson, Atty. Gen., and John J. Haynes, Asst. Atty. Gen for the State.
Originally the indictment in this case contained two counts, both of which charged this appellant with the offense of robbery. After the close of taking the testimony, the court upon motion of the Solicitor entered a nol pros as to count one the case was therefore tried under the second count of the indictment. Said count charged, omitting formal parts, that Holston Muse, whose name is unknown to the grand jury otherwise than as stated, feloniously took four dollars and ten cents ($4.10), in specie coin of the United States of America, the property of Oscar Glenn, from his person, and against his will by violence to his person, or by putting him in such fear as unwillingly to part with the same, contrary to law, etc.
Robbery, under the statute in this State, is a capital offense. Section 5460, Code 1923; and upon the trial of such a case the court must make an order for a special venire, as provided in Section 8644 of the Code 1923, unless such special venire is waived by the defendant entering a plea of guilty, or in writing waives the right of a special venire. In this case, the defendant pursued this course, and said waiver in writing, was duly entered of record.
The trial in this case resulted in the conviction of the defendant, the verdict of the jury being: "We the jury find the defendant guilty of robbery, as charged in the indictment and fix his punishment at 20 years imprisonment in the State penitentiary." Judgment of conviction was duly pronounced and entered, and the court sentenced the defendant to imprisonment in the penitentiary for a period of twenty years. From this judgment the defendant appealed.
The corpus delicti was fully proven without dispute or conflict, by the testimony of Oscar Glenn, the alleged injured party, who also testified as to the identity of the perpetrator of the robbery, and testified positively that this appellant was the person who committed the offense.
The first several exceptions reserved to the rulings of the court upon the admission of testimony, relate to the identification of appellant, by Glenn, at the county jail on the next night after the robbery wherein he, Glenn, was permitted to testify that eight or ten prisoners in the jail were lined up for his inspection for the purpose of ascertaining whether or not the man who had robbed him was among them. That he immediately identified this appellant as being the man and witness pointed him out and stated "that is the man." Others, who were present, officers of the law, were permitted to testify as to what was said and done on that occasion, this in corroboration of the testimony of witness Glenn. It affirmatively appears, that the testimony allowed, over the objection of defendant, disclosed conclusively that all that was said and done on that occasion was in the presence and hearing of the defendant, who made no denial of the accusation that he was the identical person who committed the robbery. Under the oft announced rule of evidence this testimony was clearly admissible, and the exceptions to the rulings of the court in this connection cannot be sustained. Silence in the face of pertinent and direct accusation of crime, partakes of the nature of a confession, and is admissible as a circumstance to be considered by jury, as tending to show guilt, even though the person charged is in custody on the charge. Doby v. State, 15 Ala.App. 591, 74 So. 724; 6 Alabama Digest, Criminal Law, + 407 (1).
On cross-examination of the defendant, the Solicitor asked him the following question: "Now I will ask you, Holston, if in June, 1935, you were convicted in the courts here in Gadsden for petit larceny, and served a sentence?" The defendant objected to the question upon several grounds, and the court overruled the objections. No exception was reserved by the defendant to this ruling of the court, hence there is nothing to review in this connection. The extended arguments in brief by counsel for appellant, and also by the Attorney General, were evidently based upon, the assumption that an exception was reserved to the action of the court in overruling defendant's objection. Such assumption is without foundation, however, for it affirmatively appears from this record, as stated, no exception to this ruling was reserved.
After the evidence was closed, the defendant made a motion to exclude the evidence of defendant having been...
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...in order to establish flight the State must prove that the accused left the city or community where the crime occurred. Muse v. State, 29 Ala.App. 271, 196 So. 148 (1940), cert. denied, 239 Ala. 557, 196 So. 151 (Ala.1940) ("[T]here can be no set or specific time necessary to constitute fli......
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